State of North Carolina s106

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF VANCE 08 DOJ 0183

Lamar Krider ) Petitioner ) ) vs. ) PROPOSAL FOR DECISION ) N. C. Sheriffs' Education and ) Training Standards Commission ) Respondent )

On May 29, 2008, Administrative Law Judge Beecher R. Gray heard this case in Raleigh, North Carolina. This case was heard after Respondent requested, pursuant to N.C.G.S. § 150B- 40(e), the designation of an administrative law judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes.

APPEARANCES

Petitioner: Lamar Krider, Appeared Pro Se

Respondent: E. Mike Heavner, Assistant Attorney General

Whether Petitioner knowingly made a material misrepresentation of any information required for certification to the North Carolina Sheriffs’ Education and Training Standards Commission or to the North Carolina Criminal Justice Education and Training Standards Commission.

FINDINGS OF FACT

1. Both parties properly are before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received notice of hearing, and that Petitioner received the proposed denial of Justice Officer’s Certification letter. (Respondent’s Exhibit 10)

2. The North Carolina Sheriffs’ Education and Training Standards Commission (hereinafter referred to as “The Sheriffs’ Commission”) has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to deny, revoke, or suspend such certification. -2-

3. 12 NCAC 10B.0204(c)(1) and (2) states that the Sheriffs’ Commission may revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant or certified justice officer has:

(1) knowingly made a material misrepresentation of any information required for certification or accreditation from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission; or

(2) knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation, or cheating whatsoever, obtained or attempted to obtain credit, training or certification from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission.

4. Petitioner was appointed as a detention officer with the Vance County Sheriff’s Office on March 3, 2000. (Respondent’s Exhibit 1)

5. In 2000, as part of his application to be a detention officer with the Vance County Sheriff’s Office and to be certified as a detention officer through the North Carolina Sheriffs’ Education and Training Standards Commission, Petitioner completed the required Form F-3, “PERSONAL HISTORY STATEMENT.” On the first page of the form appears the following, “NOTE: Any statements are subject to validation and any incorrect statements or omissions may disqualify you from certification. Truthful statements to any item requested will not necessarily exclude you from consideration.” In response to Question No. 44 of the Personal History Statement form, which asked, “Have you ever used marijuana? YES  NO  If YES, what were the circumstances?”, Petitioner checked the “NO” block. Immediately before this question, the following appears on the Personal History Statement form, “NOTE: Answer all of the following questions completely and accurately. Any falsifications or misstatements of facts may be sufficient to disqualify you from certification. Applicants for the position of justice officer must disclose all prior criminal conduct.” On March 1, 2000, Petitioner certified, subscribed, and swore that “each and every statement” made on the form was “true and complete” and that he understood that any misstatements or omission of information may subject him to disqualification or dismissal. (Respondent’s Exhibit 2)

6. Petitioner separated from the Vance County Sheriff’s Office on June 11, 2004. (Respondent’s Exhibit 3)

7. Petitioner was certified as a detention officer with the Granville County Sheriff’s Office from March 27, 2002 to January 1, 2005. (Respondent’s Exhibits 4, 5)

8. Petitioner currently is not certified as a detention officer.

9. Petitioner was sworn as a deputy with the Vance County Sheriff’s Office on January 1, 2007. (Respondent’s Exhibit 6) -3-

10. As part of his application to be a deputy with the Vance County Sheriff’s Office and to be certified as a deputy through the North Carolina Sheriffs’ Education and Training Standards Commission, Petitioner completed the required Form F-3, “PERSONAL HISTORY STATEMENT.” In response to Question No. 44 of the Personal History Statement form, which asked, “Have you ever used marijuana? YES  NO  If YES, what were the circumstances?”, Petitioner checked the “YES” block and wrote, “was not good at all\ In with a crowd trying to be cool”. On January 12, 2007, Petitioner certified, subscribed, and swore that “each and every statement” made on the form was “true and complete” and that he understood that any misstatements or omission of information may subject him to disqualification or dismissal. (Respondent’s Exhibit 7)

11. Diane N. Konopka, Deputy Director of the Sheriffs’ Standards Division, testified about the Sheriffs’ Standards Division’s investigation and the contents of Petitioner’s certification file. When the staff for Respondent reviewed and compared Petitioner’s 2000 Personal History Statement form (denying use of marijuana) with his 2007 Personal History Statement form (admitting use of marijuana), it was determined that there was a noticeable discrepancy in response to the questions concerning Petitioner’s prior use of marijuana. Staff for Respondent requested Petitioner submit a statement explaining this discrepancy.

12. Petitioner responded in a sworn Affidavit, dated July 19, 2007 in which he stated:

…The issue was that if I ever tried marijuana before and the truth is yes, but F-3 states some how no. I’m very certainly that this was a big mistake that I over looked. Also, I want to let Sheriff Standards no, that I am not trying to lie about anything if that was the case I would have kept on putting no for the answer … I do take full responsibility for this matter. I apologize deep down inside my heart for everything. . . I tried marijuana back in 1998 or 1999 just trying to be cool with a crowd of friends. ..

(Respondent’s Exhibit 8)

13. Petitioner also provided a second sworn Affidavit stating he never divulged his marijuana use to anyone when he completed his Personal History Statement form in 2000. (Respondent’s Exhibit 9)

14. When this matter was considered by the Probable Cause Committee of Respondent, the Sheriff’s Standards’ Division Staff presented the findings of their investigation. After considering all of the evidence, the Probable Cause Committee of Respondent found probable cause to believe Petitioner made a knowing material misrepresentation of information required for certification to the Sheriffs’ Commission by not disclosing his prior use of marijuana on his March 1, 2000 Personal History Statement form. Based on this material misrepresentation, the Probable Cause Committee found probable cause that Petitioner’s justice officer certification should be denied for a period of not less than five years from the date of final denial. (Respondent’s Exhibit 10) -4-

15. Respondent’s Exhibit 11 is a copy of Respondent’s Request for Admissions, Interrogatories, and Requests For Production of Documents and Petitioner’s sworn response.

16. Petitioner testified to the following at the hearing. He is a deputy with the Vance County Sheriff’s Office and has been working there for seventeen months. He admits he did not list his marijuana use on his 2000 Personal History Statement form. (Respondent’s Exhibit 2) He admits that in 1998, when he was about 19 years old, he did smoke part of a marijuana cigarette. The incident occurred in the summer at a cookout outside his wife’s residence. There were about eight people involved and the incident lasted about five seconds. He explained that he incorrectly answered Question No. 44 on the application because he was in a hurry. Petitioner indicated he had really wanted to be deputy. He was told he should start as a detention officer. As soon as Petitioner turned 21 he applied for the detention officer position. At the hearing, Petitioner was unable to point out any other questions he answered incorrectly or skipped on his 2000 Personal History Statement form. Petitioner first disclosed his marijuana use when he completed his 2007 Personal History Statement form. He stated he took full responsibility for his mistake.

17. The Sheriff of Vance County, Peter White, testified to the following at the hearing on Petitioner’s behalf. Sheriff White believes Petitioner is a good deputy who is respected in the community. Petitioner is involved in civic activities. Considering Petitioner’s relative inexperience, Petitioner is a very good performer. The Sheriff feels Petitioner made an error. The Sheriff would like to keep Petitioner as a deputy. The Sheriff hopes the Commission would allow Petitioner to keep his certification, perhaps by substituting a period of probation in lieu of denial.

BASED UPON the foregoing FINDINGS OF FACT and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case. The parties received proper notice of the hearing in the matter. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.

2. A preponderance of the evidence exists to support the conclusion that Petitioner knowingly made a material misrepresentation of information required for certification to Respondent, on March 1, 2000, when, in response to Question No. 44 of the Personal History Statement [Form F-3], he answered “NO” indicating no past drug use.

3. Honesty is an essential attribute of justice officers. -5-

4. Under 12 NCAC 10B .0205(2)(c), when the Sheriffs’ Commission suspends, revokes, or denies the certification of a justice officer, the period of sanction shall be not less than five years where the cause of sanction is material misrepresentation of any information required for certification or accreditation from the Sheriffs’ Commission or the North Carolina Criminal Justice Education and Training Standards Commission. The Sheriffs’ Commission may either reduce or suspend the periods of sanction under this Item or substitute a period of probation in lieu of revocation, suspension or denial following an administrative hearing. This authority to reduce or suspend the period of sanction may be utilized by the Sheriffs’ Commission when extenuating circumstances brought out at the administrative hearing warrant such a reduction or suspension, in the discretion of the Sheriffs’ Commission.

5. The findings of the Probable Cause Committee of Respondent are supported by substantial evidence and are not arbitrary and capricious.

6. The party with the burden of proof in a contested case must establish the facts required by G.S. § 150B-23(a) by a preponderance of the evidence. N.C. Gen. Stat. § 150B-29(a). The administrative law judge shall decide the case based upon the preponderance of the evidence. N.C. Gen. Stat. § 150B-34(a).

7. Petitioner has the burden of proof in the case at bar. Petitioner has failed to show by a preponderance of the evidence that Respondent’s proposed denial of Petitioner’s justice officer certification is not supported by substantial evidence.

8. Petitioner voluntarily disclosed his use of marijuana without any outside compulsion. He is respected in his community, involved in civic activities, and a good performer. The Sheriff of Vance County has testified to Petitioner’s good character.

9. There are extenuating circumstances in this case that warrant the Commission, in its discretion, to reduce or suspend the period of sanction.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends Respondent deny Petitioner’s application for justice officer certification for a period of not less than five years for material misrepresentation of information required for certification. The Undersigned further recommends Respondent substitute a one year period probation in lieu of denial.

NOTICE

The Agency making the Final Decision in this contested case is required to give each party an opportunity to file Exceptions to this Proposal for Decision, to submit Proposed Findings of Fact and to present oral and written arguments to the Agency. N.C.G.S. § 150B- 40(e). -6-

The Agency that will make the Final Decision in this contested case is the North Carolina Sheriffs’ Education and Training Standards Commission.

IT IS SO ORDERED.

This the 20th day of June, 2008.

______Beecher R. Gray Administrative Law Judge